Finding Comfort in Rule 502(b) in Inadvertent Disclosure
Litigation Partner Sean Sheely and Associate Tiana McLean authored a New York Law Journal article titled "Finding Comfort in Rule 502(b) in Inadvertent Disclosure."
According to the article, attorneys are facing the ever-present and increasing fear of waiving a privilege through disclosure of privileged documents, especially during discovery of electronically stored information, due to the massive amounts of data that are reviewed and produced during electronic discovery proceedings and with the advent of recently filed electronic discovery malpractice suits. Congress enacted Federal Rule of Evidence 502(b) as an instruction on how to gauge whether a privilege has been waived where a party inadvertently produces a privileged document. The Federal Rules of Evidence Advisory Committee aimed for Rule 502(b) to act as a mechanism to help control the costs associated with trying to avoid the disclosure of privileged documents during discovery, such as costs due to multiple reviews. In the article, Mr. Sheely and Ms. McLean follow the court's examination and application of the rule in Valentin v. Bank of New York Mellon Corp alongside the Advisory Committee's explanatory notes on the rule.